WILLIAM M. WOOLLEY, )
vs. ) CASE NO. 91-1351RX
Respondent. )
This matter came on for final hearing pursuant to notice before the Division of Administrative Hearings before James W. York, its duly designated Hearing Officer, on March 28, 1991, at Tallahassee, Florida.
FOR PETITIONER: John D. Carlson, Esquire
FOR RESPONDENT: C. Graham Carothers, Esquire
The issue to be determined is whether Rule 6GX37-2.02(5)(a), Rules of School Board of Leon County, Florida, is an invalid exercise of delegated legislative authority.
By petition filed March 1, 1991, Petitioner (Superintendent), in his capacity as Superintendent of Schools of Leon County, Florida, seeks an administrative determination of the invalidity of a portion of Rule 2.02 adopted by the Respondent School Board of Leon County, Florida (Board) on February 12, 1991. The portion of the rule at issue provides as follows:
The Superintendent shall request and obtain the consent of the Board prior to the submission of a nomination of any person to fill any approved district level classified position having a salary grade classification of 14 or higher. Such consent shall be
and whenever there is a vacancy in such positions.
The petition alleges the following grounds upon which Petitioner asserts the invalidity of the rule:
By amendment to his petition which was unopposed by the Respondent, Petitioner added the following ground:
g. (sic) The rule requires consent on an annual basis by the School Board. The rule contravenes the authority of the Superintendent to make multiyear appointment recommendations.
At the final hearing, Petitioner called the following witnesses: Mr. Bill Woolley, Mr. Wayne Blanton, Mr. Paul Onkle, Mr. David Giordano, Ms. Ruth Mitchell, Mr. Frank LaPorta, and Mr. Woodrow Darden.
By stipulation of the parties, the Respondent was permitted to examine each witness without limitation as to the scope in order to eliminate the necessity of recalling the witnesses in support of Respondent's case.
Petitioner offered three exhibits which were received without objection.
By stipulation, the parties agreed to furnish a transcript of the proceeding and to file proposed final orders within 21 days of the filing of the transcript, thereby waiving the 30-day time period within which the final order must be rendered, pursuant to Section 120.36, Florida Statutes. Both parties filed proposed final orders within the time frames agreed to. These proposed final orders have been considered in the preparation of this order and specific rulings on the parties' proposed findings of fact are included in the Appendix.
The Petitioner is the Superintendent of Schools for Leon County, Florida, having been elected to this office in 1988. The Respondent is the School Board of Leon County.
The Superintendent has the authorization and statutory duty to recommend positions to be filled and to nominate persons to the Board for appointment to positions in the Leon County School System.
The School Board annually determines the number of instructional positions for which the Superintendent is authorized to bring nominations.
The Superintendent prepares his personnel plan before the school year commences. Once the year commences and positions are budgeted and operational, plans are developed and implemented with personnel who occupy these positions.
Historically, the Superintendent notifies the incumbent holding an administrative position two to three weeks prior to the statutory date on which certain nominations must be made as to whether such person would be renominated.
The Superintendent has previously brought nominations to the Board for approved positions past the statutory deadline.
The Superintendent has previously requested an extension of time from the Board within which to bring a nomination for an administrative position. At no time has the Board denied a request by the Superintendent to extend the date upon which nominations could be made.
The Superintendent has previously recommended to the Board that certain approved jobs not be filled and the Board has agreed to such action every time. The Board has never attempted to fill such positions on its own motion.
The Board may properly abolish a position which becomes vacant by reason of the incumbent's death, resignation, retirement, promotion, demotion or transfer.
There is no specific statutory deadline by which the Superintendent must bring a nomination for a newly approved position.
The rule applies to pay grade positions in which only one person occupies a single position. These positions include the Superintendent's immediate staff. The rule applies to supervisor positions. Principals, assistant principals and teacher positions are not embraced by the rule.
The rule requires that the Superintendent request and obtain the consent of the Board prior to the submission of nominations on an annual basis. The Superintendent is granted statutory authority to enter into contracts with supervisors for periods not to exceed 3 years. Section 231.36(1)(b), Florida Statutes.
The rule does not require the Superintendent to wait until a certain date within which to seek the Board's consent to bring a nomination and the Superintendent could seek such consent months ahead of the statutory deadline for him to bring nominations for such positions.
The Superintendent could forward an employee's resignation for action by the Board and request the Board's consent to bring a nomination to fill such a position at the same meeting.
The Board has the sole authority to create employee positions and to abolish such positions.
The rule at issue does not contain any definitions, guidelines, or standards by which the Board will exercise its discretion to grant or to deny "consent."
The rule does not provide any time frame for action by the Board on the Superintendent's request for consent to tender the nomination of a person to fill a position embraced by the rule.
The Superintendent and his staff were consulted prior to the adoption of the rule and were consulted with regard to the decision to place the newly adopted rule in Section (5)(a) of Rule 6GX37-2.02, Rules of the School Board of Leon County.
The Superintendent has failed to prove, by a preponderance of the evidence, that the placement of the rule results in confusion such that the rule is invalid based on statutory grounds of vagueness.
The Superintendent has failed to prove, by a preponderance of the evidence, that there has been any collusion among Board members in adopting the rule or that reasons given by the Board for adopting the rule are false.
The Superintendent was present at the School Board meeting on September 18, 1990, when the development of the rule was first discussed. The Superintendent was also present at the Board meeting on February 12, 1991, when the rule was adopted. The Superintendent failed to prove that the challenged rule was adopted by the Board without consideration of his recommendations as required by Section 230.22(2), Florida Statutes.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.56, Florida Statutes.
Standing
A party challenging the validity of an existing or proposed rule bears the burden of proving standing to maintain such a challenge where, as in this proceeding, standing is made an issue. Department of Health and Rehabilitative Services v. Alice, 367 So.2d 1045 (Fla. 1st DCA 1979). Petitioner, in his memorandum of law filed in this proceeding on March 27, 1991, argues that as the duly elected Superintendent of Schools for Leon County, Florida, the Superintendent is authorized by law and has the statutory duty to recommend positions to be filled and to nominate persons to the Board for appointment to such positions in the Leon County district school system.
Florida case law establishes that, in disputes regarding the authority of a School Superintendent vis a vis the District School Board, the public
interest requires that disputes such as these be fully aired and resolved in accordance with law. Greene v. School Board of Hamilton County, 444 So.2d 500 (Fla. 1st DCA 1984).
Petitioner is substantially affected by the rule at issue in this proceeding and has standing to bring this action. Section 120.56(1), Florida Statutes.
The Burden of Proof
Petitioner bears a stringent burden in challenging an agency rule. Agrico Chemical Co. v. State Department of Environmental Regulation, (Fla. 1st DCA 1978), cert. den. 376 So.2d 74 (Fla. 1974). If the challenged rule does not exceed the agency's statutory authority and is reasonably related to an appropriate purpose of the statutes, it should be sustained. State Marine Fisheries Commission v. Organized Fishermen of Florida, 503 So.2d 935 (Fla. 1st DCA 1987). An agency's construction of the statute it administers is entitled to great weight and is not to be overturned unless clearly erroneous. Pan American Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983).
However, agencies have only such powers as statutes confer. Fiat Motors of North America v. Calvin, 356 So.2d 908 (Fla. 1st DCA 1978). The rules adopted by an agency must be authorized by statute. Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA 1989). The legislature may authorize an agency to interpret but never to alter statutes. Department of Health and Rehabilitative Services v. Framat, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). The District School Board is an agency subject to the provisions of Chapter 120, Florida Statutes. Witgenstein v. School Board of Leon County, 347 So.2d 1069 (Fla. 1st DCA 1977).
The disputed rule, as adopted by the Board on February 12, 1991, provides as follows:
The Superintendent shall request and obtain the consent of the Board prior to the submission of a nomination of any person to fill any approved district level classified position having a salary grade of 14 or higher. Such consent shall be required for such positions on an annual basis and whenever there is a vacancy in such positions. Rule 6GX37-2.02(5)(a), Rules of the School Board
of Leon County, Florida.
The Respondent's Statutory Authority
The Board relies upon Section 230.22(2), Florida Statutes, as authority for the promulgation and adoption of the disputed rule. (Petitioner's Exhibit 2, p. 2). This statute provides as follows:
(2) ADOPT RULES AND REGULATIONS--
The School board shall adopt such rules and regulations to supplement those prescribed by the state board as in its opinion will contribute to the more orderly and efficient
operation of the district school system. 230.22(2), Florida Statutes.
In its notice of intent to amend Rule 6GX37-2.02(5), the Board stated that the rule adoption implements Section 230.23(5), Florida Statutes. In pertinent part, this statute provides, with respect to personnel, that the Board is authorized to:
- Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of Chapter 231:
Positions, qualifications, and appointments.--Act upon written recommendations submitted by the superintendent for minimum qualifications for personnel for the various positions and act upon written nominations of persons to fill such positions. The school board may reject for good cause any employee nominated. If the third nomination by the superintendent for any position is rejected for good cause, if the superintendent fails to submit a nomination for initial employment within a reasonable time as prescribed by the school board, or if the superintendent fails to submit a nomination for reemployment within the time prescribed by law, the school board may proceed on its own motion to fill such position. Section 230.23(5)(a), Florida Statutes.
In its prehearing memorandum of law, at the final hearing in this proceeding, and in its proposed final order, Respondent also argues that Section 230.03(2), Florida Statutes, further authorizes the action of the Board in adopting the rule at issue. This provision, which the Board refers to as its "home rule" statute, confers upon the District School Boards broad authority to "exercise any power except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Florida Statutes. Respondent contends that 1983 amendments to Chapter 230 modified this statute to its present form by deleting previous language restricting the power of the Board to act in furtherance of "educational purposes" as defined in the prior law, and changing the term "law" to "general law" thus evidencing legislative intent to further strengthen and expand the Board's authority.
In this proceeding, Petitioner challenges the Board's action in adopting the disputed rule based upon allegations that the rule is contrary to Section 120.56(1) and that the rule is contrary to the statutory framework under which the superintendents and district school boards operate in personnel matters as outlined in Sections 220.23 and 230.33, Florida Statutes. Therefore, it is noted at the outset that to the extent the rule in question contravenes any of these statutory provisions, the action of the Board in adopting the rule at issue is contrary to specific provisions of general law and cannot be sustained in reliance upon Section 230.03(2), Florida Statutes.
The Statutory Authority of the Board vis a vis the Superintendent
The Petitioner argues that the rule in question is contrary to the statutory scheme which outlines the powers of the Superintendents of schools vis a vis the district school boards as interpreted by Florida case law. In sum, the authority of the Superintendent to nominate personnel for appointment by the Board is contained in Section 230.33(7)(a), Florida Statutes. Regarding the responsibilities and authority of the Superintendent in personnel actions, Section 230.33(7)(a) states as follows:
Personnel--Be responsible, as required herein, for directing the work of the personnel, subject to the requirements of Chapter 231, and in addition he shall have the following duties:
Positions, qualifications, and nominations--Recommend to the school board duties and responsibilities which need to be performed and positions which need to be filled to make possible the development of an adequate school program in the district; recommend minimum qualifications of personnel for these various positions; and nominate in writing persons to fill such positions. All nominations for reappointment of supervisors and principals shall be submitted to the school board at least 8 weeks before the close of the past school conference period.
All nominations for reappointment of members of the instructional staff shall be made after conferring with the principals and shall be submitted in writing to the school board at least 6 weeks before the close of the post school conference period. (emphasis supplied)
The district school board authority in personnel matters is contained in Section 230.23(5), Florida Statutes, and is cited by the Board as the statute implemented by the rule in question. Subject to requirements of Chapter 231, Florida Statutes, not at issue in this proceeding, Section 230.23(5) authorizes the Board to designate positions to be filled; prescribe qualifications for those positions; and to provide for appointment, compensation, promotion, suspension, and dismissal of employees. Subsection (a) of Section 230.23(5), as quoted previously in this Final Order, requires the Board to act upon written recommendations submitted by the Superintendent of persons to fill such positions. As previously noted, Subsection (a) also provides that the Board may reject the superintendent's nominations for cause and outlines conditions under which the Board may proceed on its own motion to fill positions. Significantly, the superintendent may forfeit his authority to nominate where the nomination is not forwarded within a reasonable time as prescribed by the Board. Section 230.23(5)(a), Florida Statutes.
This statutory scheme prescribing the authority of the board and the Superintendent in personnel matters has been analyzed by Florida's appellate courts on several occasions. The court in Greene v. School Board of Hamilton County, 444 So.2d 500 (Fla. 1st DCA 1984), summarized Florida case law in this regard as follows:
By statute, the school board is the policy making body for the school district, while the superintendent is the chief executive officer of the school board and the chief administrator within the school district.
Under these statutes, it has been repeatedly held that with regard to employment of school district personnel, it is the superintendent's duty to select and nominate personnel, while it is the school board's duty to appoint and contract with employees nominated by the superintendent, unless, upon a finding of good cause the board chooses to reject such nominations. 444 So.2d 500, 501 (citations omitted, emphasis supplied)
In the Greene case, the court went on to examine legislative intent with respect to the provisions of Chapter 230 which are pertinent in these proceedings and said:
We perceive that the allocation of responsibilities with respect to school district personnel matters outlined above, i.e., selection by the superintendent and appointment by the Board, was intended not only to remove political considerations from the process of selecting those persons responsible for the education of children, but also to insure that the superintendent will have sufficient control and authority over the employees of the school district to permit him to carry out the responsibilities of managing the system. Id.
Based upon the authority of Greene and the cases cited therein, it is well settled that, pursuant to Chapter 230, Florida Statutes, the Petitioner in this case has the exclusive statutory authority and duty to nominate school district personnel for appointment by the Board. See, also State ex. rel. Lawson v. Cherry, 47 So.2d 768 (Fla. 1950), Von Stephens v. School Board of Sarasota County, 338 So.2d 890 (Fla. 2d DCA 1976).
Sections 230.22(2), 230.23(5) and 230.03(2), Florida Statutes, which are relied upon by the Board as authority for the rule at issue, do indeed constitute broad grants of rule making authority to the Board. Under such broad delegation of legislative authority, the Board's construction of these statutes must be accorded great weight. So long as the implementing statute is construed in a permissible manner, the agency construction should be sustained even though another interpretation may be possible or even, in the view of some, preferable. Humhosco, Inc. v. Department of Health and Rehabilitative Services, 476 So.2d
258 (Fla. 1st DCA 1985). However, in order to determine the validity of the disputed rule, the authorizing and implementing statutes relied upon by the board must be read in conjunction with other statutes which prescribe the authority of the Superintendent. Sections 230.23(5) and 230.33(7)(a), prescribing the authority of the Board vis a vis the Superintendent, each deal with school district personnel matters. It is an accepted maxim of statutory construction that a law should be construed together with and in harmony with
any other statute relating to the same subject matter. Garner v. Ward, 251 So.2d 252, 255 (Fla. 1971).
The Board's construction of the statutes cannot be construed in harmony with Section 230.33, Florida Statutes. Based upon the statutory scheme and the cases interpreting such statutes previously discussed, the Board's contention that the disputed rule is authorized by Sections 230.22 and 230.23 cannot be sustained.
The rule at issue in this case provides that the Superintendent "shall obtain the consent of the Board prior to submission of a nomination" of persons to fill the school district positions embraced by the rule. Rule 6GX37- 2.02(5)(a) of the Leon County School Board. Thus the rule would require the Superintendent to obtain the permission of the Board to perform a statutory duty based upon the authority granted by the legislature.
An administrative rule cannot enlarge, modify or contravene provisions of a statute, and a rule which purports to do so is an invalid exercise of delegated legislative authority. Department of Business Regulation v. Solution, LTD, 452 So.2d 65 (Fla. 1st DCA 1984).
In addition, the rule requires the Superintendent to request and obtain the consent of the Board prior to submitting nominations to fill positions on an annual basis. Section 231.36(1)(b), Florida Statutes, authorizes the Superintendent to enter into contracts with supervisors for periods not to exceed 3 years. The rule impairs the Superintendent's statutory authority to enter into multiyear contracts with supervisors contrary to this additional statutory provision.
Sections 120.56(2) and 120.52(8), Florida Statutes
Petitioner also asserts that the rule is an invalid exercise of delegated authority pursuant to Section 120.56(2), Florida Statutes, which provides:
Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated authority.
The term "invalid exercise of legislative authority" is defined in Section 120.52(8), Florida Statutes, as follows:
"Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:
The agency has materially failed to follow the applicable rulemaking proceedings set forth in S. 120.54:
The agency has exceeded its grant of rulemaking authority, citation to which is required by S. 120.54(7);
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by S. 120.54(7);
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or
The rule is arbitrary and capricious.
Application of Section 120.52(8) to the Rule at Issue
The rule at issue would require that the superintendent request and obtain the consent of the Board in order to exercise lawful authority pursuant to the Superintendent's statutory duty.
Based upon the statutes and case authorities outlining the authority each of the parties as previously discussed, the challenged rule attempts to exceed and enlarge the Board's authority and contravenes other specific provisions of law. Therefore, the rule is an invalid exercise of legislative authority as defined in Section 120.52(8)(c), Florida Statutes. See, Department of Business Regulation v. Salvation LTD, supra.
In addition, the rule vests unbridled discretion in the Board contrary to Section 120.52(8)(d), Florida Statutes. The rule in question contains no standards or guidance and reserves to the Board the arbitrary power to impair the Superintendent's ability to perform his statutory duties and to exercise his statutory authority to nominate persons to fill positions within the district school system. Such arbitrary power vested in the Board also determines the rights of the person that the Superintendent selects for nomination. Thus the rule vests unbridled discretion in the Board and is, on that basis, an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(d), Florida Statutes. Barrow v. Holland, 125 So.2d 153 (Fla. 1960), State v. Cumming, 365 So.2d 153 (Fla. 1978).
Petitioner also asserts that the rule is arbitrary and capricious. Based upon the foregoing conclusions and for the reasons discussed above, the rule is arbitrary and capricious within the meaning of 120.58(c), Florida Statutes. The rule is arbitrary and capricious in that it seeks to impose requirements that are contrary to the cited provisions of Florida Statutes.
Respondent's Authority to Appoint and to Abolish Positions
The Respondent correctly maintains that it is the sole prerogative of the Board to decide what positions shall be authorized within the school district. Respondent argues that it is this basic authority of the Board upon which the rule is bottomed and that the rule simply directs the Superintendent to first inquire of the Board whether it wishes to fill approved positions before bringing a nomination.
The Respondent argues that many reasons may prompt a school board to decide not to fill positions, citing as an example the anticipation of revenue shortfall and the desirability of leaving open or abolishing positions as an alternative to layoffs. These are very real and reasonable considerations.
However, the rule challenged in this case does not address the Board's prerogatives with respect to the operating budget, nor does the rule mention appointments or the abolishment of positions. Instead, the rule simply mandates
that the Superintendent obtain the consent of the Board prior to exercising his lawful authority pursuant to his statutory duties. The validity of the rule is determined based upon its plain wording and cannot be defended based upon what the Respondent may intend to do with it.
Respondent asserts that "it is patently illogical to suggest that a district school board has the sole power to create a position and to abolish that position, but that it may not decide from time to time not to fill the position." The obvious response to this assertion is that it is not for the Respondent any more than it is for the Hearing Officer, to rewrite a statutory scheme. See, School Board of Marion County v. Public Employees Relations Commission, 330 So.2d 770 (Fla. 1st DCA 1976).
Based upon the authorities previously cited, the courts have consistently held that the legislature has clearly delineated the statutory authority of school superintendents vis a vis district school boards in personnel matters and the rule, based upon its clear wording, is contrary to this statutory scheme.
of delegated legislative authority.
DONE and ORDERED this 22nd day of May, 1991, at Tallahassee, Florida.
JAMES W. YORK, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1991.
The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner, William M. Woolley:
The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent, School Board of Leon County:
John D. Carlson, Esquire 1709-D Mahan Drive Tallahassee, FL 32308
C. Graham Carothers, Esquire Ausley, McMullen, McGehee,
Hon. Betty Castor Commissioner of Education The Capitol
Sydney H. McKenzie General Counsel The Capitol, PL-08
Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32399-1300
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
